Tobacco Lawyer Not Surprised By Verdict

October 8, 2000|By THOMAS A. CORFMAN Chicago Tribune

If you ranked every lawyer in the country according to "Most Likely to Lose the Largest Punitive Damage Verdict in History,'' Dan K. Webb's name would probably be at the bottom of the list. Yet the former U.S. attorney, now a leading defender for Philip Morris, Inc., holds that unpleasant honor after a Florida jury ordered the tobacco industry to pay $144.8 billion to sick smokers.

Webb, 55, prosecuted public official corruption cases as a young assistant U.S. Attorney in the early 1970s.

After a stint in private practice, he returned in 1981 to head the office and personally handled several high profile cases. In 1984, he joined Thompson at Winston & Strawn, an 840-lawyer Chicago-based firm. He served as a special prosecutor in the Iran-Contra investigation.

Today his practice includes not only white-collar criminal cases but also complex civil trials for large corporations.

The following are excerpts from a post-trial interview:

Q: How did you lose a $145 billion verdict?

A: People can say, "Well, Webb lost $145 billion,'' and that's fine. I don't have any trouble with that. But I was not involved in the case during the first phase of the trial, in which Philip Morris and the other companies were alleged to have engaged in some serious acts of misconduct, and the jury came back finding some liability on everything. So then they got into what's called the punitive damage trial. And Philip Morris came to me and said: "Look, this is pretty much an impossible situation; we've lost on liability.''

The judge had decided that the jury would determine punitive damages not on an individual smoker-by-smoker basis but on a class-wide basis for 700,000 people.

When I went down to Miami last September, I knew there was going to be a huge verdict. At least I knew that everyone expected a huge verdict. Stock analysts were predicting somewhere between $100 billion to $400 billion.

After a nine-month trial, the verdict came in at $145 billion dollars, which I was very dissatisfied with, OK? But I have to be candid. There was no great surprise.

Q: To the average person, it just seems like lawyering for the tobacco companies to argue that individual plaintiffs should have known the dangers of smoking. Philip Morris itself did not acknowledge that there was a causal link between cancer and smoking until last October.

A: Well that's not really true. Philip Morris has acknowledged for years that people who smoke cigarettes have a much higher risk of acquiring certain diseases, including lung cancer. That's been acknowledged for years. What Philip Morris and the other tobacco companies basically said is that when you bring it down to any particular individual, there may very well be other factors that come into play. I do not think you can go out and find a human being in America who does not say that they believe smoking is bad for you, which is why the tobacco companies today still win most of these individual trials. I can't imagine a single person ever goes to the tobacco companies for medical advice.

Q: When you accepted Philip Morris as a client in 1996, the tobacco companies had a pattern of misleading denials, questionable research and obfuscation. They had prolific discovery battles over documents that were later produced, which helped start this tide of litigation. Why did you take on a client with such an image?

A: If you're going to be a real trial lawyer you have to be willing to go down in the arena and fight wars. Philip Morris was under fire. Tobacco companies had become politically unpopular in the United States. And it looked to me like a huge challenge because of the allegations being made against the tobacco companies.

If you're a trial lawyer, No. 1, you cannot run away from controversial cases. And No. 2, if you don't take on controversial cases you won't try cases, because most other cases resolve and settle themselves out.

Q: You still have a certain good-guy image from your days as U.S. attorney. But the sense is that companies like Philip Morris use up people who have credibility.

A: I'm not sure that's accurate. Big corporations quite frankly hire people to be trial lawyers who they believe will walk into a courtroom and win a case. When I first came out of the U.S. attorney's office I didn't get hired by anybody right away because I had to prove myself in the private world -- that I can walk into a courtroom on behalf of private clients and prevail.